Summary: A parent complained about the school admission appeal panel’s refusal of her appeal concerning a school place for her daughter. But the Ombudsman does not have grounds to investigate the complaint because there is no sign of fault in the way the panel considered the case.

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
3. We cannot question whether a school admission appeal panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))

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How I considered this complaint

4. I considered the information Miss X provided with her complaint, and her comments when we spoke on the telephone. I also gave Miss X an opportunity to comment on a draft of this decision before I reached a final view in her case. In addition I took account of documents from the Council about Miss X’s appeal.

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What I found

5. Y is due to start school in the Reception year in September 2020.
6. When Miss X applied for a school place she listed another local school (‘School B’) as her first preference.
7. But on 6 April 2020 Miss X emailed the Council to change her preference to School A. However on national offer day on 16 April the Council offered Y a place at School B.
8. A few days later the Council notified Miss X that Y had been placed on the waiting list for School A. In May the Council sent Miss X a letter refusing her application for School A as it was full at that time. The letter also informed Miss X about her right of appeal about this decision.

9. Miss X went on to appeal about the Council’s refusal of a place for Y at School A. However the independent appeal panel turned down her appeal.

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Analysis

10. In normal circumstances appeal panels must allow appellants the opportunity to appear in person and make spoken representations. But the Government has introduced temporary regulations and guidance relating to appeals, in response to the Coronavirus outbreak. In particular the new guidance says admission authorities should not hold face-to-face hearings until it is safe. Instead authorities should hold hearings by telephone or video conference or, where this is not possible, on the basis of written representations only.
11. The Council decided to arrange a hearing by telephone in Miss X’s case. But I do not see sign of fault in the Council’s decision to deal with the appeal in this way, given the circumstances and current Government guidance.
12. Appeal panels must follow the law when considering an appeal. In particular the law says the size of an infant class must not be more than 30 pupils per teacher, with very limited exceptions. In infant class size appeals, the rules say the panel must consider whether:

• admitting another child would breach the class size limit;
• the admission arrangements comply with the law, and were properly applied to the case;
• the decision to refuse a place was one which a reasonable authority would have made in the circumstances.

What is ‘reasonable’ is a high test. To uphold an appeal on this ground the panel would need to be sure that the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels in infant class appeals rarely find an admission authority’s decision to be unreasonable.

13. Miss X had applied for a Reception year place, so her appeal was heard under the infant class size rules.
14. The School’s admission number in the Reception year is 60, with children split into two classes of 30. At the time of the appeal hearing all 60 places had been filled. As a result the panel decided the infant class size limit in one of the classes would be exceeded if Y was also admitted.
15. From the records of what the Council presented to the panel about this issue, I consider the panel had good reason to agree with its case on infant class size prejudice.
16. The panel also decided that the School’s admission arrangements were lawful and correctly applied in Y’s case.
17. Miss X considered the Council had time to deal with her request to change her preference to School A before national offer day. Miss X also said she was told at the appeal hearing that if her preference had been changed when the Council received her email Y would have been offered a place on national offer day.
18. But I am not convinced there is sign of fault by the panel in concluding the admission arrangements were properly implemented in Y’s case.
19. In particular I note that the Council’s admissions arrangements say that applications received after the closing date of 15 January 2020 are treated as late and are considered after all on time applications have been dealt with. In addition it says late applications are not processed until after national offer day.
20. As a result I am not convinced the Council could be faulted for not offering Y a place at School A on 16 April or for not considering Miss X’s change of school preference until after that date.
21. In addition, having gone through the appeal clerk’s notes from the hearing, I did not see a reference to anyone saying that Y would have been given a place if the Council had acted on Miss X’s email on 6 April. However there is a reference indicating the Council said that if Miss X’s application had been on time (i.e. submitted by 15 January) a place would have been offered at School A.
22. The rest of Miss X’s appeal case related mainly to Y’s medical condition and other special needs which she felt would be well catered for by the specialist provision at School A. Miss X also referred to her application for her son to be admitted to School A and her wish for both of children to be together there. Miss X said it would be impossible for her to get her children to and from school on time if they were in different schools.

23. But from the information provided I do not see sign of fault in the way the panel considered Miss X’s appeal case.
24. In particular the appeal clerk’s minutes from the hearing and the decision-making, and the panel’s decision letter, indicate that panel members noted and understood the main points Miss X put forward in her appeal case. I also note that the panel explored the issues with Miss X in their questions on the day. On this basis I am not convinced there is evidence to suggest the panel failed to take account of any significant points in Miss X’s appeal case.
25. Miss X felt the panel did not consider the fact that Y is waiting for an Education, Health and Care Plan (EHCP) because of her special educational needs, as this was not mentioned in the summary of her appeal case in its decision letter. But I do not see the lack of a specific reference to an EHCP indicated the panel had not considered this matter, and I note the summary did refer to Y being on the Special Educational Needs register.
26. Miss X also suggested in her complaint that the panel should have taken into consideration that Y’s brother had a place at School. But the clerk’s notes of the discussion about this matter at the hearing seem to me to indicate that Miss X’s son had not been offered a place at that time.
27. In addition it appears Miss X was given a reasonable opportunity to make her case, and I note that at the end of the hearing Miss X agreed she had said everything she had wanted to say.
28. At the end of the day the panel was entitled to reach its own view about the appeal based on the information it read and heard from both sides. The panel also had to apply the strict rules required by law concerning the size of infant classes, which meant it had little scope to give weight to Miss X’s appeal case.
29. The panel could only uphold Miss X’s appeal if it concluded the Council’s refusal decision was so unreasonable as to be perverse. But the threshold for finding a decision perverse is very high, and from the information provided I do not see we would have grounds to suggest there was fault in the way the panel reached its view about reasonableness in Miss X’s case.

Final decision

30. The Ombudsman does not have grounds to start an investigation of Miss X’s complaint about the admission appeal panel’s refusal of her appeal concerning a place for her daughter at her preferred primary school. This is because there is no sign of fault in the way the panel considered Miss X’s case.

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Investigator's decision on behalf of the Ombudsman